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2013 DIGILAW 372 (AP)

Syed Ahmed Mohiuddin Madani v. G. Kusuma Kumari

2013-05-15

L.NARASIMHA REDDY

body2013
JUDGMENT The petitioner filed OS No.2096 of 2011 in the Court of XXII Junior Civil Judge, City Civil Court, Hyderabad, against the respondent for the relief of permanent injunction. He has also filed IA No.516 of 2011 under Order 39, Rules 1 and 2 CPC for temporary injunction. The IA was allowed and an order of temporary injunction was passed by the trial Court. The respondent, on the other hand, filed IA No.296 of 2012 in IA No.516 of 2011 in OS No.2096 of 2011 with a prayer to grant temporary injunction against the petitioner, restraining him from making any construction over the suit property, or from changing the physical features thereof. The trial Court dismissed IA No.296 of 2012, through order dated 15-10-2012. 2. Respondent filed CMA No.156 of 2012 in the Court of II Addl. Chief Judge, City Civil Court, Hyderabad, feeling aggrieved by the dismissal of IA 296 of 2012. She has also filed IA No.3045 of 2012 for the same relief that was prayed for in IA No.296 of 2012 in the trial Court. CMA has since been made over to the Court of III Addl. Chief Judge, City Civil Court, Hyderabad. Through order dated 30-4-2013, the lower appellate Court directed the parties to maintain status-quo and listed the matter on 4-6-2013. Petitioner challenges the order dated 30-4-2013 passed in IA No.3045 of 2012 in CMA No.156 of 2012. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. An order of ad-interim temporary injunction was passed in IA No.516 of 2011 in favour of the petitioner herein in September, 2011. It is stated that the respondent filed counter in the IA and prayed for dismissal thereof. IA No.516 of 2011 has been disposed of by this time. Alleging that the trial Court was not taking up the IA 516 of 2011, the respondent has filed IA No.296 of 2012 in IA No.516 of 2011 under Order 39, Rules 1 and 2 CPC. 5. There may be instances, though rare, where a defendant in a suit files an application for injunction against the plaintiff, under Order 39, Rules 1 and 2 CPC. 5. There may be instances, though rare, where a defendant in a suit files an application for injunction against the plaintiff, under Order 39, Rules 1 and 2 CPC. However, it is just unimaginable as to how an application can be filed by a defendant under Order 39, Rules 1 and 2 CPC in an another application filed by the plaintiff under the very same provision of law. The basis pleaded by the respondent is that efforts made by her to convince the Court to take up IA No.516 of 2011 did not fructify. Firstly, it is factually incorrect and secondly it is legally impermissible 6. A perusal of the order passed by the trial Court, dismissing IA No.296 of 2012 discloses that respondent has filed as many as 25 interlocutory applications seeking different reliefs ever since she has entered appearance in the matter; and on account of the same there was no progress in the suit or the IA. Learned counsel for the respondent does not dispute this fact. Secondly, it is not permissible in law for a defendant to file an application under Order 39, Rules 1 and 2 CPC in another application filed by the plaintiff under the same provision of law. 7. The respondent, no doubt, filed CMA before the lower appellate Court. However, IA 3045 of 2012 filed therein is nothing but a replica of IA No.296 of 2012 that was dismissed by the trial Court. When the respondent pressed for passing order in IA No.3045 of 2012, the lower appellate Court passed docket order on 23-4-2013 observing that construction work was going on since December 2012 and no ex-prate interim order can be passed in the IA. It is at the instance of the respondent, that hearing of the CMA itself was taken up. Arguments are also said to have been advanced. In the meanwhile the Presiding Officer of the Court was transferred. At that stage, when insisted by the respondent, the lower appellate Court passed the following docket order:- “BNR. Meanwhile both parties are directed to maintain status-quo call on 4-6-2013.” 8. The order passed by the lower appellate Court cannot be sustained in law. In case the Court wants to pass interim order, it ought to have taken into consideration the pleadings and arguments advanced by both the parties. Meanwhile both parties are directed to maintain status-quo call on 4-6-2013.” 8. The order passed by the lower appellate Court cannot be sustained in law. In case the Court wants to pass interim order, it ought to have taken into consideration the pleadings and arguments advanced by both the parties. Once the lower appellate Court declined to pass ex-parte order, that too by giving cogent reasons, the impugned order, which is ex-parte in nature, ought not to have been passed, once arguments were advanced in the appeal. 9. Hence, the civil revision petition is allowed and the order under revision is set aside. The lower appellate Court is directed to dispose of IA No.3045 of 2012 in CMA No.156 of 2012, or the CMA itself, depending upon the wishes of the parties, within a period of four weeks after the Court reopens. 10. The CMP filed in the CRP shall also stand disposed of. There shall be no order as to costs.